Pondering a literal “death warrant” for Larry Nassar

Jazz ShawPosted at 9:21 am on January 25, 2018

If you’ve been following our coverage of the sentencing of Larry Nassar for the sexual abuse of countless female child athletes, you already heard from both Ed and Allahpundit. Much of the conversation has appropriately focused on the performance of the judge in the case, who wound up stirring even more controversy than the monster she was sending off to prison. As part of her moment in the spotlight, Judge Rosemarie Aquilina summoned up the phrase, “I just signed your death warrant.” This set off even more fireworks in the media.

Perhaps Aquilina “went too far” with her choice of wording, but that rhetorical flourish opens the door to a separate question which Sonny Bunch ably took up at the Free Beacon yesterday. Why not clear out all of the colorful metaphors and get to the root of the matter? Perhaps there is a case to be made that someone like Nassar actually should have had a death warrant signed and be sent to meet his maker.

In an odd moment of judicial bravado today, Judge Rosemarie Aquilina proclaimed, “I just signed your death warrant” to Larry Nassar while sentencing him to as many as 175 years in prison. Twitter and IRL lawyer Gabriel Malor suggested some reasons as to why this bit of showboating was improper, and his thoughts are well worth reading. Mostly, though, I was left wondering: “Well, why not literally sign a death warrant for Nassar?”

We are told that prison is intended to be rehabilitative rather than retributive. But, as Judge Aquilina intimated, there will be no rehabilitation for Nassar: He will die behind bars. If instead, this sentence is retributive—as Judge Aquilina’s showy performance today suggests it certainly (and, I would argue, justly) is—then why not exact the full measure of retribution allowed? If the goal is simply to remove him from the population so as to protect others, why not implement a permanent, irreversible protection?

Let’s consider this idea in a serious fashion. Sonny goes through the various arguments for and against the death penalty nicely, and if you’re someone who holds an unshakable belief that the state should never take the life of a citizen based on your religious and moral beliefs you can probably skip the rest of this. But if we’re going to continue to reserve the right to impose capital punishment on the worst of the worst, Larry Nassar is arguably the poster child for the discussion.

First, we should be forced to answer the fundamental question posed by Bunch of whether judicial punishment is intended to achieve rehabilitation or retribution. Realizing that this is a long-running debate in social justice circles, I would argue that the question presents us with a false set of options as answers. To claim that rehabilitation is the primary goal we must accept the premise that every criminal is capable of being rehabilitated. I would argue that history shows this to be false. That doesn’t mean that rehabilitation can’t be a happy side effect in some cases, or even a noble goal to strive for, but it’s secondary at best.

Yet offering “retribution” as the other choice seems false as well. Yes, there is a certain element of revenge involved in sentencing. The convict, having done something to cause harm to others and outrage the citizenry at some level, is “getting what’s coming to him.” In that regard, people may feel some grim sense of satisfaction in knowing that justice was done. But again, this is a side effect. The actual goal of punishment is twofold. First, you are removing a dangerous person who has been proven incapable of behaving in a civil fashion from the population, stopping them from doing further harm. Second, the convict serves as an example to others, hopefully deterring them from engaging in similar malicious activity out of fear of what will befall them when they face justice.

So what of Larry Nassar? It’s true that we currently don’t serve up capital punishment for offenses lower than taking a life. An eye for an eye and all that. But, as I’ve argued many times in the past, aren’t there levels of evil in the hearts of some men which cross the line in a terminal fashion? (If you’ll pardon the phrase.) By the time you have sexually abused that many children, surely there is a case to be made that you are beyond redemption.

Certainly we have to exercise caution in doling out the death penalty and Bunch addresses those concerns in his essay nicely. If surpassing the bar of reasonable doubt is enough to lock someone up, shouldn’t a painfully obvious and inarguable case of guilt such as this meet the threshold for executing a monster? Opponents of the death penalty will argue that a lifetime locked up in a cell (perhaps facing prison rape, as Aquilina seemed to suggest during sentencing) is possibly worse than the death penalty. But if you’re going to go that far, then you clearly aren’t aiming for rehabilitation. That’s a call for retribution, plain and simple. And a prison sentence is no assurance that Nassar might not escape one day. What then? One fact you can’t argue about capital punishment is that the recidivism rate remains at zero for all of recorded history.

This isn’t an option for us in the case of Larry Nassar because even if the laws were changed today, they wouldn’t cover crimes committed prior to that. But the sad fact is that there are more Larry Nassars out there even as we speak. This wasn’t the first time such things have happened and, because of The Evil That Men Do, it sadly won’t be the last. Just something to think about.